draft criminal procedure (bail) (jersey) law 201- · pdf filethe draft criminal procedure...

2017 P.52

STATES OF JERSEY

r DRAFT CRIMINAL PROCEDURE (BAIL)

(JERSEY) LAW 201-

Lodged au Greffe on 6th June 2017

by the Minister for Home Affairs

STATES GREFFE

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DRAFT CRIMINAL PROCEDURE (BAIL) (JERSEY)

LAW 201-

European Convention on Human Rights

In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law

2000, the Minister for Home Affairs has made the following statement –

In the view of the Minister for Home Affairs, the provisions of the Draft Criminal

Procedure (Bail) (Jersey) Law 201- are compatible with the Convention Rights.

Signed: Deputy K.L. Moore of St. Peter

Minister for Home Affairs

Dated: 2nd June 2017

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REPORT

Introduction

The Criminal Justice System may affect everyone at some point in their lives, whether

as a person suspected of committing an offence, or as a victim or witness to a crime or

as a member of a jury. It is widely acknowledged that the laws upon which the Jersey

Criminal Justice System is based are outdated and in need of revision and

modernisation.

The main area of concern is the Loi (1864) réglant la Procédure Criminelle. Written in

French, this is still the principal source of authority for criminal procedure. This Law

was written for a different era of criminal justice. A new Law, written in English, is

being developed to ensure that criminal procedure and evidence in Jersey support a

justice system that is to be expected in a modern society.

In 2011, the Criminal Justice System Board (“CJSB”) determined that wholesale

reform of the law of criminal procedure and evidence was required as opposed to a

piecemeal approach. Consequently, in 2012, monies were voted from the Criminal

Offences Compensation Fund to be allocated to this important project. The Draft

Criminal Procedure (Bail) (Jersey) Law 201- (the “draft Law”) comprises the first

phase of that project.

The draft Law sets out the procedural framework for the grant of bail to a defendant

who appears in court in criminal proceedings. In particular, the draft Law places a

criminal court under a duty to consider bail on each occasion that a defendant appears

in the proceedings and provides the defendant with the right to bail, subject to a

number of exceptions set out in Schedule 1 to the draft Law. The draft Law also

provides the courts with clear powers to impose appropriate bail conditions and

enables those to be enforced.

In addition, the draft Law also amends Part 5 of the Police Procedures and Criminal

Evidence (Jersey) Law 2003 (“PPCE”). Once these amendments have been made,

Part 5 will be commenced in full and will –

provide the police with powers to impose conditions on pre- and post-

charge bail;

place a time limit of 6 months on the length of pre-charge bail;

amend the time limits on pre-charge police detention and for warrants of

further detention.

By codifying and amending the law in relation to bail granted by the police and courts,

the draft Law will enhance and protect the rights of suspects and defendants in

criminal proceedings to their liberty. Further, by enabling appropriate bail conditions

to be imposed and ensuring that these can be enforced, the draft Law will also help to

protect victims and witnesses throughout the criminal process.

Why do we need the new legislation?

Bail legislation has been in place in the United Kingdom (the Bail Act 1976), and

Guernsey (the Bail (Bailiwick of Guernsey) Law 2003) for some time, and is

commonplace in other jurisdictions.

In Jersey, while there are a range of powers, both in statute and customary law, to

grant bail to a person arrested for an offence or against whom criminal proceedings

have been initiated, there are gaps in law and procedure that cause difficulties in

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practice. For example, where a person might leave the Island or breach a bail

condition, an application to the court is required before the person may be arrested.

The lack of immediate recourse can be particularly problematic in cases of domestic

violence. Where a person is under investigation for an assault on a partner and is

bailed pending a charging decision, there is little that can currently be done to protect

the victim or prevent interference with witnesses during the ongoing investigation.

If a defendant fails to attend a court hearing to which he or she has been bailed, there

are powers to issue an arrest warrant, however the failure to attend is not in itself a

criminal offence.

What does the draft Law do?

The draft Law is primary legislation setting out a procedural framework for the grant

of bail in criminal proceedings and police detention time limits. It will be supported by

specific Regulations and Rules of Court.

Bail refers to the temporary release of a person, sometimes on condition that a sum of

money is lodged, or certain conditions complied with to guarantee their return to either

the Police Station or to the Court.

Bail is not a form of punishment, but by granting, or refusing bail, an element of

control is applied over the way in which an individual can conduct his or her life. This

limitation on the freedom of the individual occurs because the person is either a

suspect or charged with an offence in criminal proceedings.

A defendant can be released on unconditional, or conditional bail. In the case of

unconditional bail, the defendant is released from the custody of the Police or the

Court on their word or promise to appear at a scheduled place, day and time. A risk-

management approach is taken to the imposition of conditions of bail.

The purpose of imposing conditions on bail is to ensure that an individual will

surrender to custody, to protect the community and to reduce the likelihood of re-

offending.

If the Court decides that the defendant may not answer to bail without an incentive, a

sum of money may be required to ensure release. The amount of bail set does not

indicate a defendant’s innocence or guilt.

The draft Law comprises 3 parts and 3 Schedules.

Part 1 sets out the interpretation of the law and provides core definitions and

explanations of the expressions used throughout the draft Law.

Part 2 sets out the duties of a Court to consider bail. Article 7 of the new Law

enshrines the right to bail, placing the court under a duty to consider granting a

defendant bail on each occasion that he or she appears before the court. The

presumption in favour of bail is subject to a number of exceptions which are set out in

Schedules 1 and 2.

Among other things, these exceptions enable a Court to refuse bail to a defendant

where the Court is satisfied that there are substantial grounds for believing that the

defendant would:

fail to surrender to custody;

commit further offences whilst on bail;

interfere with witnesses or otherwise obstruct the course of justice.

Where it is satisfied this is the case, the court will consider whether these risks can be

mitigated by imposing bail conditions. If they can, then conditional bail may be

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granted. If the risk is considered so great that it cannot be mitigated, bail can be

refused and the defendant will remain in custody.

Surety

This draft Law also introduces the concept of ‘surety’. A surety is a person who

consents to be bound to potentially pay a sum of money if the defendant does not

appear at court at the specific time and date they are required to. The failure of a

defendant to surrender to custody can mean that sureties may be ordered by a court to

pay all or some of the amount they are bound to pay.

Appeals

When a party considers that the Magistrate’s decision to grant or refuse bail was

unreasonable in all circumstances, the draft Law contains clear and comprehensive

provisions to enable the defendant or prosecutor to appeal to the Royal Court.

Enforcement

The draft Law will introduce the power for a Police Officer to arrest a defendant,

without a warrant for breach, or anticipated breach of bail conditions. Once arrested,

the defendant must be presented to the Court within 48 hours of the arrest.

Part 3 sets out offences and penalties for agreeing to indemnify a surety and for

defendants failing to surrender to custody. Penalties are specified as a term of

imprisonment not exceeding 12 months and an unlimited fine.

Articles in Part 3 rely upon Schedules 2 and 3, which amend a series of miscellaneous

enactments.

Police Procedures and Criminal Evidence (Jersey) Law 2003 (“PPCE”)

The draft Law delivers important amendments to the Police Procedures and Criminal

Evidence (Jersey) Law 2003.

Pre-charge Bail

The Honorary Police and the States Police may continue to bail a person arrested for,

but not charged with, an offence to appear at a Parish Hall Enquiry or the Police

Station. Importantly, the new provisions will permit the Honorary Police and the

States Police to set bail conditions according to similar criteria as the Court.

The Bailee may request that those conditions are varied by the Honorary Police or the

States Police and, where such a request is refused, the defendant may apply to the

Magistrate to review the decision. This appeal must be heard by the Court not later

than 48 hours after the application is made. The Magistrate may overturn the decision

and remand the suspect in custody or vary the conditions. In these circumstances the

Magistrate’s decision is final and there is no appeal to the Royal Court.

Bail Time Limits

The new Law proposes a time-limit of 6 months for a person granted bail where the

individual has not been charged with an offence. This is intended to permit the Police

to conduct further detailed enquiries that require complex investigation in cases of

complex fraud, or where specialist forensic examination is required. The time period

can be extended upon application to the Magistrate.

Post-charge Bail

The draft Law brings into force provisions that prescribe the duty of a Centenier

immediately following a charge and sets out the circumstances where bail might be

refused. The provisions amend Part 5 of PPCE to enable a Centenier to grant bail with

conditions. The extent of the power to do so and the right to challenge those

conditions before the Magistrate’s Court is similar to that for pre-charge bail.

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In addition, the Centenier has specific duties in respect of young people to ensure that

they are transferred to secure accommodation pending attendance at the relevant

Court.

Custody Time Limits

The new Law provides better protection for the rights of suspects held in custody

while enquiries into an offence are being carried out.

The draft Law will amend the provisions in Part 5 of PPCE that set limits on the

length of time for which a suspect can be held in custody without being charged. Once

amended these provisions of PPCE will be brought into force.

Consultation History

Consultation has taken place within the Criminal Justice Systems Board, the Criminal

Justice Working Group, the States of Jersey Police and the Law Officers’ Department

during the drafting of the new Law. This offered interested parties the opportunity to

comment on proposed changes and identify any particular concerns with the

proposals. Engagement events have been held with the Law Society of Jersey and

other interested parties. There was a limited response to the proposed draft Law,

however generally stakeholders were supportive of introducing the Jersey legislation.

The Education and Home Affairs Scrutiny Panel have received a briefing on the draft

Law.

Timetable for implementation

The implementation of this Law will require a change in working practices and

procedures for the Honorary Police, the States Police and the Courts. These changes

will be facilitated through the delivery of the Criminal Justice System Transformation

Programme which is being delivered as part of the Public Sector Reform agenda

across the States of Jersey.

Collective responsibility under Standing Order 21(3A)

The Council of Ministers has a single policy position on this proposition, and as such,

all Ministers, and the Assistant Minister for Home Affairs, are bound by the principle

of collective responsibility to support the proposition, as outlined in the Code of

Conduct and Practice for Ministers and Assistant Ministers (R.11/2015 refers).

Financial and manpower implications

There are no additional financial or manpower implications for the States arising from

the adoption of this draft Law.

Human Rights

The notes on the human rights aspects of the draft Law in the Appendix have been

prepared by the Law Officers’ Department and are included for the information of

States Members. They are not, and should not be taken as, legal advice.

http://www.statesassembly.gov.je/AssemblyReports/2015/R.11-2015.pdf

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APPENDIX TO REPORT

Human Rights Notes on the Draft Criminal Procedure (Bail) (Jersey) Law 201-

These Notes have been prepared in respect of the Draft Criminal Procedure (Bail)

(Jersey) Law 201- (the “draft Law”) by the Law Officers’ Department. They

summarise the principal human rights issues arising from the contents of the draft Law

and explain why, in the Law Officers’ opinion, the draft Law is compatible with the

European Convention on Human Rights (“ECHR”).

These notes are included for the information of States Members. They are not,

and should not be taken as, legal advice.

1. These Notes will firstly explain the relevant ECHR rights and principles that

are engaged by the draft Law. It will then explain how the provisions of the

draft Law ensure that they are compatible with the ECHR.

Article 5 – Right to liberty and security

2. Article 5 ECHR protects the physical liberty and security of the person. Its

aim is to ensure that no one is deprived of their liberty in an arbitrary or

unjustified fashion.

3. Article 5(1) of the Convention provides that:

“Everyone has the right to liberty and security of person. No one

shall be deprived of his liberty save in the following cases and in

accordance with a procedure prescribed by law ...”.

4. Article 5(1) ECHR permits a deprivation of liberty in a number of specific

cases, where that deprivation is lawful and in accordance with a procedure

prescribed by law. Six situations are set out in Article 5(1) in which the

deprivation of a person’s liberty may be permissible. The European Court of

Human Rights (“ECtHR”) has stated that the list of exceptions to the right to

liberty secured in Article 5(1) is an exhaustive one, and only a narrow

interpretation of those exceptions is consistent with the aim and purpose of

that provision, namely to ensure that no one is arbitrarily deprived of his or

her liberty.

5. The exception of primary relevance to bail is Article 5(1)(c), which permits

the lawful arrest or detention of a person effected for the purpose of bringing

him before the competent legal authority on reasonable suspicion of having

committed an offence, or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having done so.

6. The Court has held that Article 5(1)(c) of the ECHR must be read in

conjunction with Article 5(3). Article 5(3) is intended to minimise the risk of a

detention under Article 5(1)(c) being arbitrary. Article 5(3) provides that –

“Everyone arrested or detained in accordance with the provisions of

paragraph (1)(c) of this article shall be brought promptly before a

judge or other officer authorised by law to exercise judicial power

and shall be entitled to trial within a reasonable time or to release

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pending trial. Release may be conditioned by guarantees to appear

for trial.”.

7. The first requirement introduced by Article 5(3) is to ensure “prompt and

automatic judicial control of police or administrative detention ordered in

accordance with the provisions of Article 5(1)(c)”. What is prompt must be

assessed in each case according to its special features, but the Strasbourg

jurisprudence confirms that ordinarily the period should be no longer than

four days. Strasbourg Jurisprudence also confirms that the “judge or other

officer” must be independent of the prosecuting authorities, must consider the

circumstances militating for and against continued detention and have the

power to order that the accused person be released.

8. The second pair of requirements introduced by Article 5(3), read literally,

appear to give the national authorities a choice between 2 courses of action,

either of which will satisfy the requirements of the ECHR: either to bring the

defendant to trial “within a reasonable time” or to release the defendant

pending trial. However, it has been established that Article 5(3) confers a right

both to trial within a reasonable time and a right (albeit not an absolute right)

to release pending trial.

9. With regard to the right to release pending trial, the approach of the ECtHR is

that the persistence of reasonable suspicion that the person arrested has

committed an offence is essential for the validity of the continued detention of

the person concerned. However, after a certain lapse of time, it is no longer

sufficient on its own. Pursuant to Article 5(3) of the ECHR, subsequent

detention will be found to be justified only if it was necessary in pursuit of a

legitimate purpose.

10. The ECtHR has recognised that pre-trial detention may be compatible with the

defendant’s right to release under Article 5(3) ECHR where it is for the

purpose of avoiding a real risk that, were the defendant released –

a. he or she would:

i. fail to attend trial;

ii. interfere with evidence or witnesses, or otherwise obstruct the

course of justice;

iii. commit an offence while on bail; or

iv. be at risk of harm against which he or she would be

inadequately protected; or

b. a disturbance to public order would result.

11. Although these purposes (or grounds as they are often referred to) are capable

of justifying pre-trial detention, the detention of an accused person will only

be justified in the public interest if the existence of concrete facts outweighing

the rule of respect for individual liberty has been convincingly demonstrated.

12. Moreover, the circumstances in which some grounds can be relied upon are

more restricted than in the case of other grounds. If, for example, there is good

reason to suppose that the defendant would abscond if granted bail, the

ECtHR is likely to accept that a remand in custody is justified. Detention on

the grounds of a supposed risk to public order or a need to protect the

defendant, however, will be appropriate only in exceptional circumstances.

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Articles 8, 10 and 11 ECHR

13. Article 8 ECHR provides –

“(1) Everyone has the right to respect for his private and family life, his

home and his correspondence.

(2) There shall be no interference by a public authority with the exercise

of this right except such as is in accordance with the law and is

necessary in a democratic society in the interests of national security,

public safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others.”


“(1) Everyone has the right to freedom of expression. This right shall

include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority and

regardless of frontiers. This article shall not prevent States from

requiring the licensing of broadcasting, television or cinema

enterprises.

(2) The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by law and are necessary

in a democratic society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder or crime, for

the protection of health or morals, for the protection of the reputation

or rights of others, for preventing the disclosure of information

received in confidence, or for maintaining the authority and

impartiality of the judiciary.


“(1) Everyone has the right to freedom of peaceful assembly and to

freedom of association with others, including the right to form and to

join trade unions for the protection of his interests.

(2) No restrictions shall be placed on the exercise of these rights other

than such as are prescribed by law and are necessary in a democratic

society in the interests of national security or public safety, for the

prevention of disorder or crime, for the protection of health or morals

or for the protection of the rights and freedoms of others. This article

shall not prevent the imposition of lawful restrictions on the exercise

of these rights by members of the armed forces, of the police or of the

administration of the State.”

16. Articles 8(2), 10(2) and 11(2) ECHR provide that an interference with the

corresponding ECHR right is permitted where it is in the interests of, amongst

other things, the prevention of disorder or crime and the protection of the

rights and freedoms of others. In principle, an interference with a person’s

Article 8(1), 10(1) and 11(1) rights would be justified from an ECHR

perspective so long as the interference is in accordance with law and is no

more than what is necessary in a democratic society (i.e. it is proportionate).

17. Below, these Notes explain how these principles are reflected in the content of

the draft Law.

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Article 5 ECHR: Articles 7 and 8 of, and Schedule 1 to, the draft Law

18. The Bail Law makes provision first and foremost in relation to the grant of

bail in criminal proceedings. Article 7(1) of the draft Law requires a court to

consider whether to grant bail on each occasion that the defendant appears in

criminal proceedings. Article 7(2) of the draft Law provides that the defendant

has the right to be granted bail, subject to the exceptions to that right

introduced by Article 8 of, and Schedule 1 to, the draft Law.

19. A defendant in criminal proceedings may be refused bail pursuant to the

exceptions from the right to bail in Schedule 1 to the draft Law. While such a

refusal would, prima facie amount to an interference with the right in

Article 5, it would be lawful under the draft Law and should fall within the

exceptions from the right in Article 5(1)(c) of the ECHR, or in in some cases

the exception in Article 5(1)(a) (see paragraph 24).

20. Article 5(1)(c) ECHR must be read together with Article 5(3), whereby the

pre-trial detention of the accused will only be justified if the ground for

detaining the accused is one recognised by the ECtHR’s case law and the

public interest in detaining the person has been convincingly demonstrated.

21. For these purposes, the exceptions from the right to bail provided for in

Schedule 1 to the draft Law reflect the ECtHR’s case law on the purposes for

which bail may be refused. Further, the requirement in paragraph 1 of

Schedule 1 for the court to be satisfied that there are “substantial grounds”

justifying the denial of bail should ensure that, in such cases as are covered by

that paragraph, the grounds are convincingly demonstrated.

22. The same considerations do not apply to paragraphs 5 and 6 of Schedule 1, as

there is a separate exception from Article 5 of the ECHR, in Article 5(1)(a),

which covers the lawful detention of a person after conviction by a competent

court. For present purposes, it is sufficient to note that provided the defendant

had been convicted or was serving a lawful sentence of imprisonment that

may itself justify the defendant’s detention.

23. Accordingly, Articles 7 and 8, and the grounds for denying bail in Schedule 1

can be applied in a way which is compatible with the ECHR.

Articles 5, 8, 10 and 11 ECHR: Articles 11 to 14, 17 and 18 of the draft Law

24. Under Article 11(2) of the draft Law, a court may impose conditions on the

grant of bail to a defendant. Pursuant to Article 11(2), the court may impose

such conditions as appear to it to be necessary –

a. to secure the defendant surrenders to custody;

b. to secure that the defendant attends a parish hall inquiry;

c. to secure that the defendant does not commit an offence while on bail;

d. to secure that the defendant does not interfere with witnesses or

otherwise obstruct the course of justice;

e. for the purpose of enabling inquiries or a report to be made; or

f. for the person’s own protection or, if the person is under the age

of 18, for the person’s own welfare or in their own interests.

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25. Pursuant to Article 12, these conditions may include a requirement to provide

a security or propose a surety. The types of conditions that might be attached

to the grant of bail could include various restrictions such as curfews, limits

on the places a person can visit, or on people with whom they can speak or

meet.

26. An example of type of bail condition that may have the potential to engage

Article 5 of the ECHR is a curfew, particularly if the curfew were to amount

to a form of house arrest.

27. Where a condition does not amount to an interference with the right in

Article 5 of the ECHR, it may still amount to an interference with the

qualified rights in ECHR Articles 8 (private and family life), 10 (freedom of

expression) and 11 (freedom of association). For example, a suspect or

defendant accused of domestic violence may be subject to bail conditions that

prevent him from staying at or visiting the family home or making contact

with friends or family members. Such conditions may amount to a serious

interference with the right of the suspect or defendant.

28. A defendant would be required to comply with such conditions and failure to

do so would leave the defendant liable to arrest pursuant to Articles 17 and 18

of the draft Law, even though breach of conditions is not an offence.

29. However, the imposition and enforcement of such conditions can be justified

for the purposes of the ECHR. Specifically, any interference with Article 5

ECHR rights arising from the imposition of bail conditions may be justified

for the purposes specific in Article 5(1)(c) ECHR.

30. Further, interference with Article 8, 10 and 11 rights may be justified on the

basis that it is necessary for the prevention of disorder or crime; or to protect

the rights and freedoms of others, pursuant to Articles 8(2), 10(2) and 11(2) of

the ECHR. In each case, such interference as arises from the draft Law would

be prescribed by law and would be subject to a number of restrictions and

safeguards, which are described below, and should ensure that their exercise

does not amount to a disproportionate interference with the rights suspects.

31. In assessing the proportionality of these provisions, it is important to

recognise that the draft Law such conditions would be imposed by a court and

may be reviewed on each occasion that the defendant appears in the criminal

proceedings.

32. Further, if conditions are imposed, notice must be given to the person pursuant

to Article 10(1) of the draft Law. A defendant may apply for a variation of the

conditions of bail to the court pursuant to Article 9 of the draft Law and the

court has the power to vary or remove conditions.

33. In view of these limits and safeguards, the provisions in the draft Law do not

give rise to a significant risk of incompatibility with Articles 5, 8, 10 and 11

of the ECHR. However, it will be important for the courts to consider

proportionality in relation to the imposition of bail conditions. For example,

where a security is required to secure the defendant’s return to court, the

amount payable must be fixed by reference to that purpose and hence with

regard to the defendant’s assets and resources.

34. For completeness, I would add that an arrest for failure to surrender to bail or

to comply with bail conditions, pursuant to Articles 17 and 18 of the draft

Law, may fall within the exceptions from the right to liberty in Article 5(1)(b)

or (c) of the ECHR.

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Article 5 ECHR: Article 22 and paragraphs 4 and 5 of Schedule 2 to the draft

Law

35. Under Part 5 of PPCE as currently in force, an officer may release an arrested

person on bail, without charging the person, subject to a requirement that the

person attend at a police station or the Parish Hall on a subsequent occasion.

This enables a suspect to remain at liberty while an investigation is ongoing.

Schedule 2 to the draft Law amends Part 5 of PPCE to empower an officer to

impose such conditions on pre-charge bail as appear to the officer necessary –

a. to secure the person surrenders to custody;

b. to secure that the person does not commit an offence while on bail;

c. to secure that the person does not interfere with witnesses or

otherwise obstruct the course of justice; or

d. for the person’s own protection or, if the person is under the age

of 17, for the person’s own welfare or in their own interests.

36. The conditions cannot include a requirement to propose or provide a surety or

security but, subject to some minor limitations, they are otherwise unrestricted

provided that they are imposed for one of the statutory purposes. The types of

conditions that might be attached to the grant of bail could include various

restrictions such as curfews, limits on the places a person can visit, or on

people with whom they can speak or meet. Under Article 44 of PPCE, as

amended by the draft Law, it is clear that the police may arrest the person if

they have reasonable grounds for suspecting that they have broken any of the

conditions, although breach of conditions is not an offence. The police may

also arrest a person for failure to surrender to police bail.

37. For the reasons discussed already in relation to the imposition of conditions on

court bail, the restrictions that may be imposed under the amended provisions

of PPCE may amount to a significant interference with the ECHR rights of a

suspect.

38. On balance, to the extent that the imposition of conditions may interfere with

the rights of the suspect, they may be justified on the basis that they pursue

legitimate aims provided for in the ECHR and are subject to a number of

restrictions and safeguards, which are described below. These restrictions and

safeguards should ensure that their exercise does not amount to a

disproportionate interference with the rights suspects.

39. Specifically, any interference with Article 5 ECHR rights arising from the

imposition of bail conditions would be justified under Article 5(1)(c) as being

for the purpose of bringing the person before the competent legal authority on

reasonable suspicion of having committed an offence. Any interference with

Article 8, 10 and 11 rights may be justified on the basis that it is necessary for

the prevention of disorder or crime; or to protect the rights and freedoms of

others.

40. In assessing the proportionality of these provisions, it is important to

recognise that the draft Law places an automatic time limit not only on the

length of pre-charge bail, and therefore also on the conditions that might be

imposed on such bail.

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41. Further, if conditions are imposed, notice must be given to the person. The

person has the opportunity to apply for variation of the conditions to a custody

officer, who has the power to vary or remove conditions. If the person wishes

to, they may also apply to the Magistrate’s court, which has the power to

discharge the person from bail, vary or remove bail conditions or order that

the person be remanded in custody.

42. In view of these limits and safeguards, and in particular in light of the

opportunity to go before a court to ask for the bail conditions to be varied, the

provisions in the draft Law concerning police bail do not give rise to a

significant risk of incompatibility with Articles 5, 8, 10 or 11 of the ECHR.

However, it will be important for the police to consider proportionality in

relation to the imposition of bail conditions. The police have the power to

arrest for any offence, however minor, and given that conditional police bail is

available where a person has been arrested in respect of any offence, officers

need to apply their new bail powers in a proportionate way.

Article 5 ECHR: Article 22 and paragraphs 10 to 12 of Schedule 2 to the draft

Law

43. As noted above, the first requirement introduced by Article 5(3) is to ensure

prompt and automatic judicial control of police or administrative detention

ordered in accordance with the provisions of Article 5(1)(c).

44. The amended provisions in Articles 40, 41 and 42 of PPCE, once brought into

force, will provide assurance that this requirement will be met. Although what

is ‘prompt’ must be assessed in each case according to its special features, the

amended provisions will ensure that a person will not be detained, pre-charge,

for a period longer than 4 days. The amended provisions will, in particular,

ensure that a person’s pre-charge detention will either be reviewed by the

Magistrate’s Court (which has the power to order that the accused person be

released) no later than 72 hours after the person is detained, if the person has

not already been released by that point.

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Explanatory Note

This draft Law would provide the procedural framework for the grant of bail when a

defendant appears before a court in criminal proceedings. This draft Law would also

amend Part 5 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 (the

“PPCE Law”) concerning the procedures for the grant of bail by police officers and

police detention. This draft Law is divided into 3 Parts.

Part 1: Interpretation and Application

Article 1 defines words and expressions used throughout this draft Law. In particular,

“court” means the Magistrate’s Court, the Youth Court or the Royal Court.

Article 2 defines the meaning of “criminal proceedings” in relation to which bail is

grantable in accordance with this Law.

Article 3 defines the meaning of “defendant” for the purposes of the proceedings in

relation to which this Law applies.

Article 4 clarifies that if a provision in this draft Law requires something to occur or

be done within 48 hours, that period would exclude Christmas Day, Good Friday and

Sundays.

Article 5 specifies that this draft Law applies to bail grantable in criminal proceedings,

(as listed under the definition “criminal proceedings” in Article 2). This Article also

provides that bail grantable –

(a) on appeal or under Article 24 of the Magistrate’s Court (Miscellaneous

Provisions) (Jersey) Law 1949 further to an application for the statement of a

case under Article 24 of that Law, or under the Court of Appeal (Jersey)

Law 1961 is not governed by this Law;

(b) in proceedings under the Extradition (Jersey) Law 2004 (the “Extradition Law”)

and the International Criminal Court (Jersey) Law 2014 (the “ICC Law”) is not

governed by this Law except in so far as is provided under Article 98A of the

Extradition Law and Article 14(2) of the ICC Law.

Article 6 provides that the provisions contained in Part 1 of this Law may be amended

by Regulations.

Part 2: Bail

Article 7 places the court under a duty to consider granting a defendant bail on each

occasion that defendant appears before the court pending the determination of the

proceedings including whenever he or she applies for a variation of the conditions of

bail (i.e. there is a general presumption in favour of granting bail). But, the

presumption in favour of bail is subject to a number of exceptions which are set out in

Schedules 1 and 2 to this draft Law.

A defendant granted bail must surrender himself or herself into custody of the court at

the time and place appointed for the defendant to do so. A defendant denied bail on his

or her first court appearance may on the next appearance advance a further application

for bail with any arguments as to fact or law regardless of whether or not those

arguments were presented on the first occasion, thereafter the court is not required to

hear any arguments previously advanced.

Article 8 introduces Schedule 1 which sets out the exceptions to the right of a

defendant to be granted bail.

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Article 9 provides for the conduct of applications for bail or variation of conditions of

bail.

Article 10 requires the court to make a record of its bail decision which must include

the court’s reasons where its decision is to deny a defendant bail or to grant bail

subject to conditions. A copy of the record must be provided to the defendant unless

he or she has legal representation. In a case where the prosecution unsuccessfully

argues against the grant of bail, the court must give its reasons for granting bail and

must supply a copy of the record to the prosecution if so requested.

Article 11 provides that bail should only be granted subject to conditions if the court

believes it to be necessary so as to secure that the defendant –

(a) surrenders to custody;

(b) attends a parish hall inquiry;

(c) does not commit further offences while on bail;

(d) does not interfere with witnesses; or

(e) for the purposes of enabling inquiries to be made or for the defendant’s own

protection.

Article 12 provides for the grant of bail subject to a condition that there is a security or

a person approved by the court to stand as a surety, so as to secure the defendant’s

surrender to custody. The court may apply both of those conditions. If bail is granted

subject to a security, the amount ordered by the court must be deposited with the

Viscount before the defendant can be released from the custody of the court. The

security deposit would, unless forfeited under Article 13, be repaid if the condition to

provide a security is lifted, or at the conclusion of the proceedings, whichever occurs

first. If a person is proposed to stand as a surety, the court may, in determining that

person’s suitability, have regard to that person’s financial resources, character and

proximity to the defendant (whether as a close association or otherwise). If the

proposed surety is approved by the court, the court must fix the amount in which the

surety is bound (liable) in the event the defendant fails to surrender to custody. The

surety is also bound as a condition of the defendant’s bail to inform a police officer as

soon as he or she believes that the defendant is unlikely to surrender to custody. If the

parent or guardian of a defendant under the age of 18 agrees to stand as a surety, that

person may also be required to secure that the defendant complies with any other

conditions of bail which the court has imposed. A parent/guardian surety cannot be

required to secure that the defendant complies with his or her conditions of bail if that

defendant attains the age of 18 before he or she is next required to surrender to the

custody of the court. Neither can a parent/guardian surety be required to secure

compliance with a condition which he or she does not agree to, nor pay a sum greater

than a sum equivalent to level 1 on the standard scale (currently £200) in respect of

any agreed conditions.

Article 13 provides for the forfeiture of a security in the event that the defendant,

without reasonable excuse, fails to surrender to custody. The court may order

forfeiture of a lesser amount than the full value of the security deposited. A forfeited

security may be remitted if the defendant can show that he or she did have a

reasonable excuse for failing to surrender to custody. A remitted security shall remain

deposited with the Viscount until the conclusion of the proceedings or that condition

of bail is lifted, whichever occurs first.

Article 14 sets out the process for establishing a surety’s liability in the event that the

defendant fails to surrender to custody or, if the defendant is under the age of 18,

breaches any condition of bail, and for recovering the amount in which the surety is

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bound. The court is required to summons the surety to appear before it to show cause

as to why the surety should not be ordered to pay the amount in which he or she is

bound. The court may order the surety to pay the full or part of the amount, or

discharge him or her from any liability.

Article 15 sets out the prosecution’s right of appeal to the Royal Court against a

decision of the Magistrate to grant bail to a defendant charged with, or convicted of an

offence punishable with imprisonment. An appeal may only be made on the ground

that the Magistrate’s decision was unreasonable. The prosecution must give oral notice

of appeal at the conclusion of the proceedings and before the defendant is released

from custody and must also serve written notice of the appeal on the Magistrate and

the defendant within 2 hours of the conclusion of the proceedings. Upon the giving of

the oral notice of appeal, the Magistrate is required to remand the defendant in custody

pending the determination of the appeal which must be heard as soon as is reasonably

practicable.

Article 16 sets out the defendant’s right of appeal to the Royal Court against a decision

of the Magistrate to deny a defendant bail in criminal proceedings. A defendant may

only appeal on the ground that the Magistrate’s decision was unreasonable in all the

circumstances of the case.

Article 17 empowers the court to order the arrest of a defendant granted bail who fails

to surrender to custody, or if it appears that the defendant has breached any condition

of bail, or absents himself or herself from the court without permission. An order

authorizes every police officer or the Viscount to arrest and detain the defendant and

bring him or her to court within 48 hours of his or her arrest.

Article 18 empowers a police officer to arrest a defendant granted bail if the officer

has reasonable grounds for believing that the defendant is not likely to surrender to

custody or has substantial grounds for believing that the defendant is likely to break

any condition of bail, or the officer suspects that the defendant has broken any of those

conditions. A police officer may also arrest a defendant if a surety has notified an

officer in writing that the defendant is unlikely to surrender to custody and the surety

wishes to be relieved of his or her obligations as a surety.

Part 3: Offences and Final Provisions

Article 19 creates the offence of agreeing to indemnify a surety. An offence is

committed if a person (“A”) agrees with another (“B”), whether or not person B is a

potential, proposed or actual surety, to indemnify person B against any liability in the

event that the defendant fails to surrender to custody, and regardless of whether or not

any form of compensation is part of that agreement. Both person A and B are guilty of

that offence and liable to imprisonment for a term not exceeding 12 months and to a

fine.

Article 20 creates the following offences of which a defendant granted bail is guilty –

(a) if he or she fails, without reasonable excuse, to surrender to custody; or

(b) if he or she fails, with reasonable excuse, to surrender to custody at the

appointed place as soon as reasonably practicable.

The burden of proof is on the defendant to show that he or she had a reasonable

excuse for his or her failure. But a failure to provide the defendant with a copy of the

bail decision record does not constitute a reasonable excuse. A defendant guilty of an

offence under this Article is liable to imprisonment for a term of 12 months and to a

fine.

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Article 21 provides Regulation making powers for the purposes amending other

enactments including this Law, in consequence of the effect of the provisions of this

Law. This Article also extends the powers under the Magistrate’s Court

(Miscellaneous Provisions) (Jersey) Law 1949 and the Royal Court (Jersey)

Law 1948, to make rules of court for the purposes of this Law.

Article 22 introduces Schedule 2 which contains miscellaneous amendments to the

PPCE Law.

Article 23 introduces Schedule 3 which contains miscellaneous consequential

amendments to other enactments.

Article 24 gives the title by which this Law may be cited and provides for it to come

into force on such day or days as the States may by Act appoint.

Schedule 1

The court has the discretion to deny a defendant bail if any of the exceptions in this

Schedule apply.

Paragraph 1 is the exception which would apply if the court has substantial grounds

for believing that if the defendant were to be granted bail (even subject to conditions),

he or she would fail to surrender to custody, commit an offence, interfere with

witnesses or otherwise obstruct the course of justice.

Paragraph 2 is the exception which would apply if the court is satisfied that the

defendant should be kept in custody for his or her own protection, or if the defendant

is under 18, for his or her own welfare.

Paragraph 3 is the exception which would apply where the court is satisfied that

owing to insufficient time since the inception of the proceedings, it has not been

practicable to obtain sufficient information for the purpose of taking decisions about

granting bail under this Schedule.

Paragraph 4 is the exception which would apply where the defendant’s case is

adjourned for the purpose of making inquiries or preparing a report and it would be

impracticable to complete those inquiries or make that report without keeping the

defendant in custody.

Paragraph 5 is the exception which would apply if the defendant has been convicted

of an offence punishable with imprisonment and is awaiting sentence.

Paragraph 6 is the exception which would apply if the defendant is in custody serving

a sentence of imprisonment.

Paragraph 7 sets out the relevant considerations which a court must have regard to

when determining whether or not any of the exceptions to the grant of bail specified in

paragraph 1 of Schedule 1 apply in respect of a defendant.

Schedule 2 contains miscellaneous amendments to the PPCE Law. In particular,

various provisions contained in Part 5 of that Law dealing with the grant of police bail

and detention are amended. Presently, only Articles 30(1), 31, 33, 44 and 45(1) in

Part 5 of the PPCE Law are in force. It is proposed that Part 5 (as amended by this

Law) would come fully into force upon the coming into force of this Law.

Paragraph 1 is the interpretation provision for Schedule 2 and defines the expression

“principal Law” to mean the PPCE Law.

Paragraph 2 would amend Article 1 of the PPCE Law and for the purposes of

Article 36 of the PPCE Law (as substituted by paragraph 7 of Schedule 2 to this Law)

in particular, would insert definitions for “child”, “secure accommodation” and

“young person”.

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Paragraph 3 would insert a new interpretation provision, Article 29A of the PPCE

Law for the purposes of Part 5 of that Law. The effect of that provision would be to

introduce a definition for the expression “prescribed” for the purposes of rules of court

as referred to in new Article 48A of the PPCE Law (as inserted by paragraph 14); and

to clarify the meaning of the expressions “release with bail” and “release on bail”

which appear in various provisions in Part 5 of the PPCE Law. Article 29A(b) of the

PPCE Law clarifies that release with or on bail means the release of a person on

unconditional bail, or on bail subject to such requirement or conditions as may be

imposed under Article 30 or new 31B of the PPCE Law.

Paragraph 4 would substitute Article 30 of the PPCE Law which deals with the grant

of bail by police officers in respect of a person who is arrested for, but not charged

with an offence. A police officer, i.e. a Centenier or a States of Jersey police officer

may grant bail subject to a requirement that the person bailed attends a parish hall

inquiry (“PHI”) or returns to a police station. If the person is no longer required to

attend a PHI or return to a police station, a police officer must notify the person in

writing that he or she is released from bail and from any requirement to so attend. A

police officer would also be able to release an arrested person on bail subject to such

conditions of bail as a court would have imposed under Article 11 of this draft Law.

When imposing or varying conditions of bail the police officer must provide the

person bailed with a written record of the conditions together with reasons. The person

bailed may request the police officer to vary the terms of his or her bail conditions and

if that request is refused, the person may apply to the Magistrate to review the police

officer’s decision to grant bail subject to conditions, or refusal to vary any such

conditions. The Magistrate may on consideration of such an application remove any

condition, impose different including more onerous conditions or deny the person bail.

A copy of the written record of the Magistrate’s decision and reasons must be

provided to the person bailed.

Paragraph 5 would insert into the PPCE Law new Articles 31A and 31B.

New Article 31A would apply to a police officer who, under Article 30(1) (as

substituted by paragraph 4 of Schedule 2 to this Law) or 31 of the PPCE Law releases

on bail a person who has been arrested for, but not charged with an offence. This

Article provides that such a person cannot be kept on police bail for a continuous

period of more than 6 months. Before the expiry of the continuous bail period, the

police officer may apply to the Magistrate for authorization to extend that period by

such further period as the Magistrate may specify. The police officer may

subsequently apply to extend that further period. The Magistrate may, when

authorizing the grant of bail for an extended period, issue directions as to the

conditions which may, must, or must not be attached to the grant of bail.

New Article 31B would, in respect of a person who has been charged with an offence,

provide a Centenier with similar powers to impose conditions of bail as a court would

have under Article 11 of this draft Law. Article 31B(3) to (11) are analogous with

Article 30(5) to (12) of the PPCE Law (as substituted by paragraph 4 of Schedule 2 to

this Law).

Paragraph 6 would make a minor consequential amendment to Article 35 of the

PPCE Law as a result of the new interpretation provision inserted by Article 29A of

the PPCE Law (as inserted by paragraph 3 of Schedule 2 to this Law).

Paragraph 7 would substitute Article 36 of the PPCE Law dealing with the duties of

Centeniers after a person has been charged. Most of the existing provisions of this

Article are re-enacted except that the provisions relating to the police detention of

juveniles have been replaced with provisions which reflect the provisions of the

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Criminal Justice (Young Offenders) (Jersey) Law 2014 concerning the detention of

children and young persons in secure accommodation.

Paragraph 8 would make a minor amendment to Article 37 of the PPCE Law

(responsibilities of custody officers in relation to persons detained) consequential upon

the amendment of Article 36 of that Law relating to the detention of a child or young

person.

Paragraph 9 would amend Article 38 of the PPCE Law as a consequence of the

substituted provisions of Article 36.

Paragraph 10 would amend Article 40 of the PPCE Law to provide for the

authorization of continued detention for a period not exceeding 48 hours from the time

of arrest. The period is increased from 36 hours so as to avoid periods where the

Magistrate’s Court is unable to sit outside normal business hours.

Paragraph 11 would insert a new Article 40A which declares that nothing in the

provisions of Articles 41 and 42 (applications by the police for warrants of further or

extended detention), shall be taken to require the Magistrate to sit on a Sunday.

Paragraph 12 would amend Article 41 of the PPCE to amend the maximum

authorized period of continued detention from 36 hours to 48 hours and to require a

police officer of at least the rank of superintendent to authorize an application for a

warrant for further detention where it is not practicable for the court to sit at the expiry

of a period of 48 hours after a person was arrested. In addition, a custody officer must

notify the Attorney General where a person has been detained for longer than 48 hours

after arrest.

Paragraph 13 would amend Article 43 of the PPCE Law (detention after charge) so as

to fix a 48 hour time limit within which a person who has been charged must be

brought before the Magistrate’s court. The 48 hour period would commence from the

time of charge and Christmas Day, Good Friday and Sundays are disregarded for

purpose of calculating that period.

Paragraph 14 would substitute Article 44 of the PPCE Law so as to enable a police

officer to arrest a person who breaches any condition of his or her bail (i.e. not just

where a person bailed fails to attend a PHI or police station, which is the current effect

of Article 44).

Paragraph 15 would insert a new Article 48A into the PPCE Law so as to extend the

powers to make rules of court under the Magistrate’s Court (Miscellaneous

Provisions) (Jersey) Law 1949 for the purpose of prescribing any forms required for

the purposes of Part 5 of the PPCE Law.

Paragraph 16 would make a minor amendment to Article 108 of the PPCE Law (not

presently in force) which deals with the extended remand of suspected drug offenders

in the custody of customs officials. The age of a person who is so remanded in custody

by the Magistrate, is amended from age 17 to age 18.

Schedule 3 sets out miscellaneous amendments to various enactments consequential

upon the enactment of this Law.

Paragraph 1 would amend Articles 20 and 24 of the Loi (1864) réglant la procédure

criminelle so that the power to grant bail under those provisions is exercised in

accordance with this Law.

Paragraph 2 would amend Articles 4 to 7 of the Criminal Justice (Jersey) Law 1957

so that that procedures concerning the payment of a security and the forfeiture of any

amount bound by a surety are consistent with the provisions of Articles 12 and 14 of

this Law.

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Paragraph 3 would amend certain bail provisions contained in Part 6 of the

Extradition Law so that when bail is being considered under that Law, only certain

specified provisions under this Law (some with modifications) relating mainly to the

grant of bail subject to a security or surety would also apply. As provided under

Article 5, this Law would not otherwise apply in relation to bail grantable in

proceedings under the Extradition Law.

Paragraph 4 would amend Rule 50 of the Prison (Jersey) Rules 2007 so as to bring it

into line with the provisions of Article 12 of this Law concerning the provision of a

security or surety.

Paragraph 5 would amend Article 14 of the ICC Law 2014 so that when bail is being

considered under that Law, only certain specified provisions under this Law (some

with modifications) would also apply. As provided under Article 5, this Law would

not otherwise apply in relation to bail grantable in proceedings under the ICC Law.

Paragraph 6 would amend the Connétables (Miscellaneous Provisions –

Consequential Amendments) (Jersey) Regulations 2014 so as to remove some un-

commenced amendments to the PPCE Law which will have been overtaken by

amendments to that Law made under Schedule 2 to this Law.

Draft Criminal Procedure (Bail) (Jersey) Law 201- Arrangement

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LAW 201-

Arrangement

Article

PART 1 25

INTERPRETATION AND APPLICATION 25

1 Interpretation ................................................................................................. 25 2 Meaning of “criminal proceedings” .............................................................. 26 3 Meaning of “defendant” ................................................................................ 27 4 References to period of 48 hours ................................................................... 27 5 Application .................................................................................................... 27 6 Power to amend Part 1 by Regulations ......................................................... 27

PART 2 28

BAIL 28

7 Duty of court to consider bail and defendant’s general right to bail ............. 28 8 Exceptions to right to bail ............................................................................. 28 9 Application for bail or variation of conditions of bail ................................... 28 10 Decisions and reasons ................................................................................... 29 11 The grant of bail subject to conditions .......................................................... 29 12 The grant of bail subject to a security or surety ............................................ 30 13 Forfeiture of security ..................................................................................... 31 14 Surety’s liability where defendant fails to surrender to custody or

breaches conditions ....................................................................................... 32 15 Right of prosecutor to appeal against Magistrate’s decision to grant

bail ................................................................................................................. 33 16 Right of defendant to appeal against Magistrate’s decision to deny bail ...... 33 17 Court order for arrest ..................................................................................... 34 18 Police power of arrest .................................................................................... 34

PART 3 34

OFFENCES AND FINAL PROVISIONS 34

19 Offence of agreeing to indemnify a surety .................................................... 34 20 Offence of failing to surrender to custody ..................................................... 35 21 Regulations and rules of court ....................................................................... 35 22 Police Procedures and Criminal Evidence (Jersey) Law 2003 amended ...... 36

Arrangement Draft Criminal Procedure (Bail) (Jersey) Law 201-

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23 Miscellaneous enactments amended ............................................................. 36 24 Citation and commencement ......................................................................... 36

SCHEDULE 1 37

EXCEPTIONS TO GENERAL RIGHT TO BAIL 37

1 Defendant presents substantial risk ............................................................... 37 2 Defendant’s own protection or welfare ......................................................... 37 3 To facilitate the obtaining of information ..................................................... 37 4 Defendant’s case adjourned for inquiries...................................................... 37 5 Defendant convicted of offence punishable with imprisonment ................... 37 6 Defendant serving sentence of imprisonment ............................................... 37 7 Relevant considerations under paragraph 1 .................................................. 38

SCHEDULE 2 39

POLICE PROCEDURES AND CRIMINAL EVIDENCE (JERSEY)

LAW 2003 AMENDED 39

1 Interpretation ................................................................................................. 39 2 Article 1 amended ......................................................................................... 39 3 Article 29A inserted ...................................................................................... 39 4 Article 30 substituted .................................................................................... 40 5 Articles 31A and 31B inserted ...................................................................... 41 6 Article 35 amended ....................................................................................... 43 7 Article 36 substituted .................................................................................... 43 8 Article 37 amended ....................................................................................... 45 9 Article 38 amended ....................................................................................... 45 10 Article 40 amended ....................................................................................... 45 11 Article 40A inserted ...................................................................................... 45 12 Article 41 amended ....................................................................................... 46 13 Article 43 amended ....................................................................................... 47 14 Article 44 substituted .................................................................................... 47 15 Article 48A inserted ...................................................................................... 47 16 Article 108 amended ..................................................................................... 48

SCHEDULE 3 49

ENACTMENTS CONSEQUENTIALLY AMENDED 49

1 Loi (1864) réglant la procédure criminelle amended .................................... 49 2 Criminal Justice (Jersey) Law 1957 amended .............................................. 49 3 Extradition (Jersey) Law 2004 amended ...................................................... 51 4 Prison (Jersey) Rules 2007 amended ............................................................ 52 5 International Criminal Court (Jersey) Law 2014 amended ........................... 52 6 Connétables (Miscellaneous Provisions – Consequential

Amendments) (Jersey) Regulations 2014 amended ...................................... 53

Draft Criminal Procedure (Bail) (Jersey) Law 201- Article 1

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LAW 201-

A LAW to make provision for, or in connection with the granting of bail by a

court in criminal proceedings; to amend the Police Procedures and Criminal

Evidence (Jersey) Law 2003 in relation to police bail and detention; and for

connected purposes.

Adopted by the States [date to be inserted]

Sanctioned by Order of Her Majesty in Council [date to be inserted]

Registered by the Royal Court [date to be inserted]

THE STATES, subject to the sanction of Her Most Excellent Majesty in

Council, have adopted the following Law –

PART 1

INTERPRETATION AND APPLICATION

1 Interpretation

(1) In this Law, unless the context otherwise requires –

“1949 Law” means Magistrate’s Court (Miscellaneous Provisions)

(Jersey) Law 19491;

“criminal proceedings” shall be construed in accordance with Article 2;

“court” means –

(a) the Magistrate’s Court and, where the context so indicates, the

Magistrate;

(b) the Royal Court; and

(c) the Youth Court;

“defendant” shall be construed in accordance with Article 3;

“offence” means any crime, délit or contravention, and any other act or

omission involving breach of a duty to which by law a sanction is

attached, and includes any alleged offence;

Article Draft Criminal Procedure (Bail) (Jersey) Law 201-

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“Mental Health Law” means the Mental Health (Jersey) Law 20162;

“police officer” includes an officer of the Impôts within the meaning of

the Customs and Excise (Jersey) Law 19993;

“prescribed” means prescribed by rules of court referred to in

Article 21(4);

“prosecutor” means –

(a) a Centenier;

(b) a Crown Advocate appointed under Article 1 of the Crown

Advocates (Jersey) Law 19874; or

(c) a person approved by the Attorney General, under Article 14 of the

1949 Law, to undertake prosecutions on his or her behalf, and

the expression “prosecution” shall be construed accordingly;

“security” shall be construed in accordance with Article 12(1)(a);

“surrender to custody” means, in relation to a defendant granted bail,

surrendering himself or herself into the custody of the court (according to

the requirements of the grant of bail) at the time and place appointed for

the defendant to do so;

“surety” means a person who, under Article 12(4), is approved by the

court to secure a defendant’s surrender to custody;

“vary” means, in relation to bail, imposing further conditions after bail is

granted, varying existing conditions or lifting any or all existing

conditions.

(2) References in this Law to –

(a) the “grant of bail” shall be construed as bail –

(i) subject to Article 5, grantable under any enactment,

(ii) taken to be grantable in the proceedings referred to in

Article 2(d), or

(iii) grantable under any rule of customary law;

(b) a defendant having previously been granted bail includes bail

granted before the coming into force of this Law.

2 Meaning of “criminal proceedings”

For the purposes of this Law, “criminal proceedings” in relation to a defendant

means –

(a) proceedings before a court in respect of an offence;

(b) proceedings under Part 8 or 9 of the Mental Health Law;

(c) proceedings under Article 4(2)(a) of the Criminal Justice (Suspension of

Prison Sentences) (Jersey) Law 20035; or

(d) proceedings in relation to a person who, having been convicted of an

offence –

(i) is awaiting sentence,


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(ii) is to be committed to the Royal Court under Article 1 of the

Criminal Justice (Probation Orders) (Jersey) Law 19866, or

(iii) appears or is brought before a court, or is to be committed to the

Royal Court, under Article 7 or 8 of the Criminal Justice

(Community Service Orders) (Jersey) Law 20017.

3 Meaning of “defendant”

For the purposes of this Law, “defendant” means a person –

(a) charged with an offence;

(b) convicted of an offence and awaiting sentence;

(c) in relation to whom a finding is made under Article 59 or 72 of the

Mental Health Law;

(d) who is the subject of proceedings referred to in paragraphs (c) and (d) of

the definition “criminal proceedings”;

(e) summoned by a Centenier to appear before the Magistrate’s Court in

respect of an offence, pursuant to Article 9 of the 1949 Law; or

(f) against whom criminal proceedings are directly initiated in the Royal

Court by the Attorney General.

4 References to period of 48 hours

(1) This Article applies where any provision of this Law requires something

to be done or to occur within 48 hours.

(2) In determining when the period of 48 hours expires, there shall be

disregarded Christmas Day, Good Friday and any Sunday.

5 Application

(1) Subject to paragraphs (2) and (3), this Law applies to bail grantable in, or

in connection with criminal proceedings.

(2) This Law does not apply to –

(a) bail grantable under Article 24 of the 1949 Law; or

(b) bail grantable under the Court of Appeal (Jersey) Law 19618.

(3) Except as provided in Article 98A of the Extradition (Jersey) Law 20049,

and Article 14(2) of the International Criminal Court (Jersey) Law 201410,

this Law does not apply to bail grantable in, or in connection with

proceedings under those Laws.

6 Power to amend Part 1 by Regulations

The States may by Regulations –

(a) amend this Part; and

Article 7 Draft Criminal Procedure (Bail) (Jersey) Law 201-

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(b) make such supplementary, incidental, consequential, transitional,

transitory or savings provision as appears to the States to be necessary or

expedient for the purposes of that amendment.

PART 2

BAIL

7 Duty of court to consider bail and defendant’s general right to bail

(1) On each occasion upon which a defendant appears before the court in

criminal proceedings, it shall be the duty of the court to consider whether

the defendant should be granted bail pending the determination of those

proceedings, including any occasion where the defendant applies to the

court for a variation of his or her conditions of bail.

(2) Except as provided in Schedule 1, a defendant has the right to be granted

bail whenever he or she is brought before the court in the course of, or in

connection with criminal proceedings.

(3) A defendant granted bail is under a duty to surrender to custody, and

must not absent himself or herself from the court without the court’s

permission.

(4) If the court denies the defendant bail on the first occasion he or she

appears before it, the defendant may, on the next occasion he or she

appears before that court, or any other court in the proceedings, support

an application for bail with any argument as to fact or law that the

defendant wishes to put forward.

(5) On any subsequent occasion that the defendant applies for bail, the court

need not hear arguments as to fact or law which that court, or any other

court, has heard previously.

8 Exceptions to right to bail

Schedule 1 sets out the exceptions to the right to be granted bail.

9 Application for bail or variation of conditions of bail

(1) Any application for bail or for a variation of the conditions of bail may be

conducted in open court, and any application for a variation of the

conditions of bail may be conducted without a hearing if the defendant,

the prosecution and any surety so agree.

(2) If the court grants bail subject to conditions, it may subsequently vary any

such conditions –

(a) of its own motion;

(b) on the application of the defendant or the prosecution; or

(c) on the application of a surety.


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(3) An application for bail or for a variation of the conditions of bail may be

made orally or in such form as may be prescribed or, in the absence of a

prescribed form, in such written form as the court requires.

10 Decisions and reasons

(1) Where the court –

(a) grants a defendant bail;

(b) denies a defendant bail;

(c) imposes, or varies any of the conditions of bail; or

(d) appoints a time or place or a different time or place for a defendant

to surrender to custody,

the court shall make a record of the decision in such form as may be

prescribed or, in the absence of a prescribed form, in such written form as

the court determines.

(2) Subject to paragraph (6), the court shall provide the defendant with a

copy of the record of the decision as soon as practicable after the record

is made.

(3) Where paragraph (1)(b) or (c) applies, the record of the decision shall

include the reasons for denying bail or imposing or varying any condition

of bail.

(4) In a case where the court grants a defendant bail after hearing

representations from the prosecutor in favour of denying bail, then the

court shall also give reasons for granting bail.

(5) Where paragraph (4) applies –

(a) the record of the decision shall include the reasons for granting

bail; and

(b) if requested to do so by the prosecutor, the court shall provide the

prosecutor with a copy of the record of the decision as soon as

practicable after the record is made.

(6) The court need not provide a copy of the record of the decision to the

defendant where he or she has legal representation unless that defendant’s

legal representative requests the court to do so.

11 The grant of bail subject to conditions

(1) Except as provided under paragraph (2), the court shall not impose

conditions on the grant of bail to a defendant.

(2) A defendant may be required to comply, before he or she is released on

bail or later, with such conditions as appear to the court to be necessary –

(a) to secure that the defendant surrenders to custody;

(b) to secure that the defendant attends a parish hall inquiry;

(c) to secure that the defendant does not commit an offence while on

bail;


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(d) to secure that the defendant does not interfere with witnesses or

otherwise obstruct the course of justice, whether in relation to

himself or herself, or any other person;

(e) for the purpose of enabling inquiries or a report to be made; or

(f) for the defendant’s own protection or, if the defendant is under the

age of 18, for the defendant’s own welfare or in the defendant’s

own interests.

12 The grant of bail subject to a security or surety

(1) Before a defendant is released on bail the court may, as a condition of

bail, require the defendant to do either or both of the following –

(a) provide a security for the defendant’s surrender to custody which

shall be –

(i) of such an amount as the court may order, and

(ii) deposited with the Viscount before the defendant is released

from the custody of the court;

(b) propose a person who agrees to stand as surety to secure the

defendant’s surrender to custody.

(2) The security referred to in paragraph (1)(a) may be provided by the

defendant or on his or her behalf.

(3) In considering the suitability of a proposed surety, the court may have

regard (amongst other things) to the surety’s –

(a) financial resources;

(b) character and any previous convictions; and

(c) proximity (whether as an associated person, in place of residence

or otherwise) to the defendant.

(4) If the court is satisfied as to the suitability of the proposed surety, it shall

approve that person to stand as the defendant’s surety.

(5) Upon approving the surety, the court shall fix the amount in which the

surety is to be bound and Article 14 shall apply in respect of that surety if

the defendant fails to surrender to custody.

(6) Where bail is granted subject to a surety, it is also a condition of that bail

that if the surety believes at any time that the defendant is unlikely to

surrender to custody –

(a) the surety must inform a police officer forthwith; and

(b) the surety must as soon as practicable deliver to a police officer a

statement in writing by the surety confirming the information.

(7) If a parent or guardian of a defendant under the age of 18 agrees to stand

as surety for the defendant, for the purposes of this Article, the parent or

guardian may be required to secure that the defendant complies with any

other conditions imposed on him or her under Article 11.

(8) However –

(a) a requirement cannot be imposed on a parent or guardian under

paragraph (7) where it appears that the defendant will attain the age


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of 18 before the time appointed for the defendant to surrender to

custody;

(b) the parent or guardian –

(i) cannot be required to secure compliance with any condition

to which his or her agreement does not extend, and

(ii) cannot in respect of those conditions to which his or her

agreement does extend, be bound in a sum greater than a

sum equivalent to level 1 on the standard scale.

(9) Article 14 also applies in respect of a surety who, under paragraph (7), is

required to secure that the defendant complies with any other conditions

imposed on him or her under Article 11 and the defendant fails to comply

with any such conditions.

(10) If, at any time, the court orders a reduction in the amount of security

previously ordered to be deposited under paragraph (1)(a), the Viscount

shall, as soon as is reasonably practicable, repay the excess amount of

security to the defendant or the person who provided it on the defendant’s

behalf.

(11) The amount of security deposited with the Viscount under

paragraph (1)(a) shall, unless ordered as forfeited under Article 13, be

repaid to the defendant or the person who provided it on the defendant’s

behalf –

(a) when the condition of bail to provide a security is lifted; or

(b) at the conclusion of the proceedings,

whichever occurs first.

13 Forfeiture of security

(1) Where a defendant has provided a security under Article 12(1)(a), or a

security is provided on his or her behalf under Article 12(2) and the court

is satisfied that the defendant has failed to surrender to custody then,

unless it appears that the defendant had a reasonable excuse for that

failure, the court may order the forfeiture of the security.

(2) If the court orders the forfeiture of a security under paragraph (1), the

court may order that the forfeiture extends to such amount less than the

full value of the security as it thinks fit.

(3) An order under paragraph (1) shall, unless previously revoked, take effect

at the end of 21 days beginning with the day on which it is made.

(4) An application may be made to the court to show that the defendant had a

reasonable excuse for his or her failure to surrender to custody.

(5) An application under paragraph (4) shall be made in the prescribed form,

and may be made –

(a) by or on behalf of the defendant; or

(b) by the person who provided the security.


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(6) If, on application under paragraph (4), the court is satisfied that the

defendant did, after all, have a reasonable excuse for his or her failure to

surrender to custody, the court may order –

(a) remission of the full value of the forfeited security; or

(b) that the forfeiture extends to such amount less than the full value of

the security as it thinks fit.

(7) An application under paragraph (4) may be made before or after the order

for forfeiture has taken effect, but shall not be entertained unless the court

is satisfied that the prosecutor was given reasonable notice of the

applicant's intention to make it.

(8) A security which is forfeited under paragraph (1) shall be administered by

the Viscount as if it were a fine imposed by the court.

(9) Where an order is made under paragraph (6), any money which would

have fallen to be repaid to the defendant or other person who provided the

security, shall remain deposited with the Viscount to be repaid to the

defendant or other person, in accordance with Article 12(11).

14 Surety’s liability where defendant fails to surrender to custody or breaches

conditions

(1) This paragraph applies where –

(a) a defendant is granted bail subject to a surety and that defendant

fails to surrender to custody; or

(b) in a case in respect of which Article 12(9) applies, a defendant fails

to comply with any other conditions imposed on him or her.

(2) Where paragraph (1)(a) applies, the court shall summons the surety to

appear before the court at the time, and on the date specified in the

summons to show cause as to why he or she should not be required to pay

the amount in which he or she is bound.

(3) Where paragraph (1)(b) applies, the court may, if it is satisfied that the

surety has failed to secure the defendant’s compliance with his or her

conditions of bail, summons the surety to appear before the court at the

time, and on the date specified in the summons to show cause as to why

he or she should not be required to pay the amount in which he or she is

bound.

(4) The court may proceed in the absence of any surety if it is satisfied that

he or she has been served with the summons.

(5) The form, content and service of a summons under this Article shall be

prescribed.

(6) The court may order that the whole or part only of the amount in which

the surety is bound shall be forfeited, or may discharge the surety from

any liability to pay that amount.

(7) Payment of any amount ordered to be forfeited under this Article,

including any costs awarded against the defendant, shall be paid to the

Viscount and that amount –

(a) shall be administered as if it were a fine imposed by the court; and


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(b) if required, shall be recoverable in such manner as shall be

prescribed.

15 Right of prosecutor to appeal against Magistrate’s decision to grant bail

(1) This Article applies where the Magistrate, having heard representations

from the prosecutor that bail should not be granted to a defendant who is

charged with or convicted of an offence punishable with imprisonment,

grants bail to the defendant.

(2) The prosecutor may, subject to paragraph (3) and in accordance with

paragraph (4), appeal to the Royal Court against the granting of bail.

(3) An appeal under this Article may only be made on the ground that the

Magistrate’s decision was unreasonable in all the circumstances of the

case.

(4) The prosecutor must –

(a) give oral notice of appeal to the Magistrate at the conclusion of the

proceedings in which bail has been granted, and before the

defendant is released from custody; and

(b) serve written notice of appeal on the Magistrate and on the

defendant, within 2 hours of the conclusion of the proceedings.

(5) Upon oral notice of appeal being given, the Magistrate shall remand the

defendant in custody until the appeal is determined or otherwise disposed

of.

(6) The appeal shall be deemed to have been disposed of if the prosecutor

fails to serve either or both of the notices required by paragraph (4)(b),

within the time required by that provision.

(7) The hearing of an appeal under this Article shall commence as soon as is

reasonably practicable after oral notice is given under paragraph (4)(a).

(8) The Royal Court, when hearing an appeal under this Article, may remand

the defendant in custody or grant bail subject to such conditions as it

thinks fit.

(9) In the case of a defendant under the age of 18, the reference in

paragraph (1) to an offence punishable with imprisonment is to be read as

a reference to an offence which would be so punishable in the case of a

defendant aged 18 or over.

(10) There shall be no right of appeal against a decision of the Royal Court

under this Article.

16 Right of defendant to appeal against Magistrate’s decision to deny bail

(1) If the Magistrate denies a defendant bail in criminal proceedings, the

defendant may appeal to the Royal Court against that decision.

(2) An appeal under this Article may only be made on the ground that the

Magistrate’s decision was unreasonable in all the circumstances of the

case.


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(3) There shall be no right of appeal against a decision of the Royal Court

under this Article.

17 Court order for arrest

(1) The court may order the arrest of a defendant granted bail –

(a) if the defendant fails to surrender to custody at the time appointed

for him or her to do so; or

(b) if it appears to the court that the defendant has broken any of the

conditions of his or her bail.

(2) The court may order the arrest of a defendant granted bail if the

defendant, having surrendered to custody, absents himself or herself from

that court –

(a) before the court is ready to commence or resume the hearing of the

proceedings in the defendant’s case; and

(b) without, or otherwise than in accordance with any, permission

given to the defendant by or on behalf of the court.

(3) An order under paragraph (1) or (2) authorizes every police officer or the

Viscount to arrest and detain the defendant to whom the order relates and

to bring the defendant before the court.

(4) A defendant arrested and detained under this Article shall be brought

before the court within 48 hours of his or her arrest.

18 Police power of arrest

(1) A police officer may arrest a defendant granted bail –

(a) if the officer has reasonable grounds for believing that the

defendant is not likely to surrender to custody;

(b) if the officer has substantial grounds for believing that the

defendant is likely to break any of the conditions of his or her bail

or has reasonable grounds for suspecting that the defendant has

broken any of those conditions; or

(c) where a defendant was granted bail subject to a surety, if that

surety notifies a police officer, in writing, that the defendant is

unlikely to surrender to custody and, for that reason, the surety

wishes to be relieved of his or her obligations as a surety.

(2) A defendant arrested under this Article shall be brought before the court

within 48 hours of his or her arrest.

PART 3

OFFENCES AND FINAL PROVISIONS

19 Offence of agreeing to indemnify a surety

(1) If a person agrees with another to indemnify that other against any

liability which that other may incur as a surety to secure the surrender to


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custody of a defendant, he or she and that other person shall be guilty of

an offence.

(2) An offence under this Article is committed whether the agreement is

made before or after the person to be indemnified becomes a surety and

whether or not he or she becomes a surety and whether the agreement

contemplates compensation in money or in money's worth.

(3) A person guilty of an offence under this Article shall be liable to

imprisonment for a term not exceeding 12 months and to a fine.

20 Offence of failing to surrender to custody

(1) A defendant granted bail who, without reasonable excuse, fails to

surrender to custody shall be guilty of an offence.

(2) A defendant granted bail who, with reasonable excuse, fails to surrender

to custody shall be guilty of an offence if he or she fails to surrender to

custody, as soon as is reasonably practicable.

(3) It shall be for the defendant to prove that he or she had a reasonable

excuse for his or her failure to surrender to custody.

(4) The fact that a defendant has not been given a copy of the record of the

decision to grant him or her bail, shall not constitute a reasonable excuse

for his or her failure to surrender to custody.

(5) A defendant guilty of an offence under paragraph (1) or (2) shall be liable

to imprisonment for a term not exceeding 12 months and to a fine.

(6) In any proceedings for an offence under paragraph (1) or (2), a document

purporting to be a certified copy of the part of the decision to grant the

defendant bail which relates to the time and place appointed for the

defendant to surrender to custody shall be evidence of the time and place

appointed for the defendant’s surrender to custody.

(7) Rules of court referred to in Article 21(4) shall specify how and by whom

copies may be certified for the purposes of paragraph (6).

21 Regulations and rules of court

(1) The States may, by Regulations make such transitional provision as

appears to the States to be necessary or expedient for the purposes of

bringing this Law into force.

(2) The States may, by Regulations amend any enactment including this Law

for the purpose of making such transitional, transitory, consequential,

incidental, supplementary or saving provision as they consider necessary

or expedient in respect of any provision made by or under this Law.

(3) The power to make Regulations under paragraph (1) includes the power

to make any supplementary, incidental, consequential, transitory or

saving provision which appear to the States to be necessary or expedient

for the purposes of the Regulations.


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(4) The powers to make rules of court under Article 29 of the 1949 Law and

Article 13 of the Royal Court (Jersey) Law 194811 include the power to

make rules for the purposes of this Law.

22 Police Procedures and Criminal Evidence (Jersey) Law 2003 amended

Schedule 2 has effect to amend the Police Procedures and Criminal Evidence

(Jersey) Law 200312.

23 Miscellaneous enactments amended

Schedule 3 has effect to amend enactments consequentially upon the enactment

of this Law.

24 Citation and commencement

This Law may be cited as the Criminal Procedure (Bail) (Jersey) Law 201- and

shall come into force on such day or days as the States may by Act appoint.

Draft Criminal Procedure (Bail) (Jersey) Law 201- SCHEDULE 1

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SCHEDULE 1

(Article 8)

EXCEPTIONS TO GENERAL RIGHT TO BAIL

Exceptions to right to bail

1 Defendant presents substantial risk

A defendant’s right to be granted bail may be denied if the court is satisfied that

there are substantial grounds for believing that the defendant, if granted bail

(whether subject to conditions or not) would –

(a) fail to surrender to custody;

(b) commit an offence whilst on bail;

(c) interfere with witnesses or otherwise obstruct the course of justice,

whether in relation to the defendant or any other person.

2 Defendant’s own protection or welfare

A defendant’s right to be granted bail may be denied if the court is satisfied that

the defendant should be kept in custody for his or her own protection or, if the

defendant is under the age of 18, for his or her own welfare.

3 To facilitate the obtaining of information

A defendant’s right to be granted bail may be denied where the court is satisfied

that it has not been practicable to obtain sufficient information for the purposes

of taking decisions required under this Schedule for want of time since the

institution of proceedings against the defendant.

4 Defendant’s case adjourned for inquiries

A defendant’s right to be granted bail may be denied where the defendant’s case

is adjourned for inquiries or a report and it appears to the court that it would be

impracticable to complete the inquiries or make the report without keeping the

defendant in custody.

5 Defendant convicted of offence punishable with imprisonment

A defendant’s right to be granted bail may be denied if a defendant has been

convicted of an offence punishable with imprisonment and is awaiting sentence.

6 Defendant serving sentence of imprisonment

A defendant’s right to be granted bail may be denied if the defendant is in

custody serving a sentence of imprisonment.

SCHEDULE 1 Draft Criminal Procedure (Bail) (Jersey) Law 201-

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Reasons for denying right to bail

7 Relevant considerations under paragraph 1

In determining for the purposes of paragraph 1 whether the court is satisfied that

there are substantial grounds for believing that a defendant, if granted bail

(whether subject to conditions or not), would do anything specified under that

paragraph, the court shall have regard to such of the following considerations as

appear to it to be relevant –

(a) the nature and seriousness of the offence or default (and the probable

method of dealing with the defendant for it);

(b) the character, antecedents, associations and community ties of the

defendant;

(c) the defendant’s record as respects fulfilment of his or her obligations

under previous grants of bail;

(d) except in the case of a defendant whose case is adjourned for inquiries or

a report, the strength of the evidence of the defendant having committed

the offence or having defaulted;

(e) the risk that the defendant may engage in conduct that would, or would

be likely to, cause physical or mental harm to any person other than the

defendant,

as well as any other considerations which also appear to the court to be relevant.


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SCHEDULE 2

(Article 22)

POLICE PROCEDURES AND CRIMINAL EVIDENCE (JERSEY) LAW 2003

AMENDED

1 Interpretation

In this Schedule, “principal Law” means the Police Procedures and Criminal

Evidence (Jersey) Law 200313.

2 Article 1 amended

In Article 1(1) of the principal Law –

(a) in paragraphs (a) and (b) of the definition “appropriate consent” for the

words “17 years” there are substituted the words “18 years”;

(b) after the definition “Chief Officer” there is inserted the following

definition –

“ ‘child’ means a person who has attained the age of 10 years and

has not attained the age of 15 years;”;

(c) after the definition “offensive weapon” there is inserted the following

definition –

“ ‘officer of the Force’ means a member of the States of Jersey

Police Force;”;

(d) the definition “police officer” is deleted;

(e) after the definition “relevant time” there is inserted the following

definition –

“ ‘secure accommodation’ has the same meaning as in Article 1(1)

of the Children (Jersey) Law 200214;”;

(f) after the definition “vessel” there is inserted the following definition –

“ ‘young person’ means a person who has attained the age of

15 years and has not attained the age of 18 years;”.

3 Article 29A inserted

Immediately before Article 30 of the principal Law there is inserted the

following Article –

“29A Interpretation of Part 5

In this Part –

(a) any reference to the release of a person on, or with bail, means the

release of that person on bail either unconditionally or with such


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requirement or conditions as may be imposed in accordance with

Article 30 or 31B;

(b) ‘prescribed’ means prescribed by rules of court referred to in

Article 48A.”.

4 Article 30 substituted

For Article 30 of the principal Law there is substituted the following Article –

“30 Police grant of bail subject to conditions where person arrested for

but not charged with an offence

(1) This Article applies where, under this Part, a Centenier or an

officer of the Force (as the case may be) releases on bail a person

arrested for, but not charged with an offence.

(2) The Centenier or officer of the Force may grant the person bail

subject to a requirement for the person to attend a parish hall

inquiry or return to a police station, on a day and at a time notified

to the person.

(3) If before the day and time notified under paragraph (2) the person

is no longer required to attend a parish hall inquiry or return to a

police station, a police officer shall notify the person in writing that

he or she is released from bail and from any requirement to attend

a parish hall inquiry or return to a police station.

(4) Where it appears to the Centenier or an officer of the Force that it

is necessary to do so –

(a) for the purpose of preventing the person from failing to

attend a parish hall inquiry or returning to a police station (as

the case may be);

(b) for the purpose of preventing the person from committing an

offence while on bail;

(c) for the purpose of preventing the person from interfering

with witnesses or otherwise obstructing the course of justice,

whether in relation to himself or herself, or any other person;

or

(d) for the protection of the person’s or, if he or she is under the

age of 18, for that person’s own welfare or in his or her own

interests,

the Centenier or officer of Force may impose such conditions of

bail as appear to him or her to be necessary for that purpose.

(5) A person granted bail subject to any conditions imposed under

paragraph (4) may request a Centenier or an officer of the Force to

vary the conditions of bail and, in doing so, that Centenier or

officer of the Force may remove those conditions or impose

different, including more onerous conditions.

(6) A request made under paragraph (5) shall be determined not later

than 96 hours after it is received, and in default of any


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determination within that period, the person granted bail may apply

to the Magistrate to vary his or her conditions of bail.

(7) Where a Centenier or an officer of the Force, pursuant to

paragraph (4), imposes conditions of bail or, pursuant to

paragraph (5), varies any condition of bail, he or she shall give the

person granted bail a copy of the record of those conditions setting

out the reasons for imposing or varying such conditions.

(8) Where a Centenier or an officer of the Force imposes conditions of

bail under paragraph (4) or, upon a request under paragraph (5),

refuses to vary the conditions of bail, the person granted bail may

apply to the Magistrate to review the Centenier’s or officer of the

Force’s decision.

(9) An application under paragraph (6) or (8) shall be made in the

prescribed form, and shall be heard not later than the first sitting of

the Magistrate’s Court after the application is made.

(10) Where paragraph (6) or (8) applies the Magistrate may –

(a) remove any condition of bail or impose different conditions,

including more onerous conditions; or

(b) overturn the Centenier’s or officer of Force’s decision to

grant bail and remand the person into custody.

(11) The Magistrate shall provide the person granted bail with a copy of

the record of his or her decision in the prescribed form, or in the

absence of such a form, in such written form as the Magistrate

determines, which shall include the reasons for denying bail or

imposing or varying any condition of bail, as soon as practicable

after the record is made.

(12) There shall be no right of appeal against a decision of the

Magistrate under this Article.”.

5 Articles 31A and 31B inserted

After Article 31 of the principal Law there are inserted the following Articles –

“31A Limit on duration of bail of person arrested for but not charged with

offence

(1) This Article applies where a Centenier or an officer of the Force

(as the case may be), under Article 30(1) or 31, releases on bail a

person arrested for, but not charged with an offence.

(2) Except as authorized under paragraph (4), a Centenier or an officer

of the Force cannot keep the person on such bail for the offence for

a continuous period of more than 6 months.

(3) The continuous period of 6 months includes any further period of

bail for the offence that is granted –

(a) on the person’s return to a parish hall or police station (as

the case may be) to answer to bail for the offence; or


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(b) following the person’s arrest under Article 44.

(4) On an application made by a Centenier or an officer of the Force

before the expiry of the continuous period of 6 months, the

Magistrate may authorize bail to be granted by a Centenier or an

officer of the Force in connection with the offence for a further

period, specified by the Magistrate, that would cause the

continuous period to exceed 6 months.

(5) On an application made by a Centenier or an officer of the Force

before the expiry of the further period specified by the Magistrate

under paragraph (4), the Magistrate may authorize bail to be

granted by a Centenier or an officer of the Force in connection with

the offence for such further period as the Magistrate may specify.

(6) If the Magistrate gives an authorization under paragraph (4) or (5),

the Magistrate may direct the Centenier or officer of the Force as to

the conditions that must, may or must not be attached to the grant

of bail, and the Centenier or officer granting bail must have regard

to those directions.


Magistrate under this Article.

31B Grant of bail by Centenier where person is charged with an offence

(1) This Article applies where a Centenier releases on bail a person

charged with an offence (the ‘person charged’).

(2) Where it appears to the Centenier that it is necessary to do so –

(a) for the purpose of preventing the person charged from

failing to surrender to the custody of the Magistrate’s Court

or Youth Court (as the case may be);

(b) for the purpose of preventing the person charged from

committing an offence while on bail;

(c) for the purpose of preventing the person charged from

interfering with witnesses or otherwise obstructing the

course of justice, whether in relation to himself or herself, or

any other person; or

(d) for the protection of the person charged or, if he or she is

under the age of 18, for that person’s own welfare or in his

or her own interests,

the Centenier may impose such conditions of bail as appear to him

or her to be necessary for that purpose.

(3) A person charged who has been granted bail subject to conditions,

may request a Centenier to vary the conditions of bail and, in doing

so, that Centenier may remove those conditions or impose

different, including more onerous conditions.

(4) A request made under paragraph (3) shall be determined not later

than 96 hours after it is received, and in default of any

determination within that period, the person charged may apply to

the Magistrate to vary his or her conditions of bail.


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(5) Where a Centenier, pursuant to paragraph (2), imposes conditions

of bail or, pursuant to paragraph (3), varies any condition of bail,

he or she shall give the person charged a copy of the record of

those conditions setting out the reasons for imposing or varying

such conditions.

(6) Where the record referred to in paragraph (5) is prescribed, the

record shall be made in that form.

(7) Where a Centenier imposes conditions of bail under paragraph (2)

or, upon a request under paragraph (3), refuses to vary the

conditions of bail, the person charged may apply to the Magistrate

to review the Centenier’s decision.

(8) An application under paragraph (4) or (7) shall be made in the

prescribed form and shall be heard not later than the first sitting of

the Magistrate’s Court after the application is made.

(9) Where paragraph (4) or (7) applies the Magistrate may –

(a) remove any condition of bail or impose different, including

more onerous conditions; or

(b) overturn the Centenier’s decision to grant bail and remand

the person into custody.

(10) The Magistrate shall provide the person charged with a copy of the

record of his or her decision in the prescribed form, or in the

absence of such a form, in such written form as the Magistrate

determines, including the reasons for denying bail or imposing or

varying any condition of bail, as soon as practicable after the

record is made.


Magistrate under this Article.”.

6 Article 35 amended

In Article 35(7)(b) of the principal Law the words “, to return to the police

station” are deleted.



“36 Duties of Centenier after charge

(1) This Article applies to a person in police detention and for the

purposes of this Article only, the expression ‘police detention’

includes a person who attends voluntarily at, or accompanies a

police officer to a police station, but who is not arrested at the

station.

(2) Where a Centenier charges a person in police detention with an

offence, the Centenier shall order the person’s release from police

detention, either on bail or without bail, unless –


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(a) the person’s name or address cannot be ascertained or the

Centenier has reasonable grounds for doubting whether a

name or address given by the person as his or her name or

address is that person’s real name or address;

(b) the Centenier has reasonable grounds for believing that the

person will, if granted bail, fail to surrender to the custody of

the Magistrate’s Court or Youth Court (as the case may be)

at the time and place appointed for the person to do so;

(c) the Centenier has reasonable grounds for believing that the

detention of the person is necessary to prevent him or her

from committing an offence;

(d) in the case of a person of full age, the Centenier has

reasonable grounds for believing that the detention of the

person is necessary to enable a sample to be taken from him

under Article 59;

(e) the Centenier has reasonable grounds for believing that the

detention of the person is necessary to prevent him or her

from interfering with the administration of justice or with the

investigation of offences or of a particular offence; or

(f) the Centenier has reasonable grounds for believing that the

detention of the person is necessary for his or her own

protection.

(3) If the Centenier does not order the release of a person charged with

an offence (‘person charged’) from police detention under

paragraph (2), the Centenier shall authorize the keeping of that

person in police detention but may not authorize that he or she be

kept in police detention by virtue of sub-paragraph (d) after the end

of the period of 6 hours beginning from the time at which that

person was charged with the offence.

(4) If, under paragraph (3), the Centenier authorizes that a person

charged be kept in police detention, the Centenier shall, as soon as

practicable, make a written record of the grounds for the detention.

(5) Subject to paragraph (6), the written record shall be made in the

presence of the person charged who shall at that time be informed

by the Centenier of the grounds for his or her detention.

(6) Paragraph (5) shall not apply where the person charged is, at the

time when the written record is made –

(a) incapable of understanding what is said to him or her;

(b) violent or likely to become violent; or

(c) in urgent need of medical attention.

(7) Subject to paragraph (8), where a Centenier authorizes that a child

or young person charged with an offence is to be kept in police

detention under paragraph (3), the Centenier shall, pending the

child’s or young person’s attendance before the Youth Court or the

Magistrate’s Court, as the case may be, secure that he or she is

transferred to secure accommodation as soon as is practicable.

(8) If –


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(a) having regard to all of the circumstances, in the Centenier’s

opinion it is impracticable to transfer the child or young

person to secure accommodation; or

(b) there is no secure accommodation available pending the

child’s or young person’s attendance before the Youth

Court,

the Centenier shall authorize the child’s or young person’s

continued police detention and shall, upon that child’s or young

person’s attendance at the Youth Court, produce a certificate

stating the grounds for that detention.

(9) For the purpose of securing the child’s or young person’s transfer

to secure accommodation under paragraph (7), it shall be lawful for

any person acting on behalf of the Minister for Health and Social

Services to effect the transfer of that child or young person to

secure accommodation, and to detain him or her for the purpose of

effecting that transfer.”.


In Article 37(4) of the principal Law, for the words “If a juvenile is moved to

publicly provided accommodation under Article 36(6)”, there are substituted the

words “If a child or young person is transferred to secure accommodation under

Article 36(7)”.


In Article 38 of the principal Law –

(a) in paragraph (1), for sub-paragraph (a) there is substituted the following

sub-paragraph –

“(a) in the case of a person who has been charged with an

offence (regardless of whether or not he or she was arrested

before being charged), by the Centenier who preferred the

charge or, if that Centenier is not immediately available,

another Centenier;”;

(b) for paragraph (11) there is substituted the following paragraph –

“(11) Where the person whose detention is under review has been

charged before the time of the review, Article 36(1) to (8) shall

have effect in relation to him or her.”.


In Article 40(1), (2) and (9) of the principal Law, where the words “36 hours”

appear, there are substituted the words “48 hours”.


After Article 40 of the principal Law there is inserted the following Article –


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“40A Applications under Article 41 or 42

In relation to any application made under Article 41 or 42, nothing in

those Articles shall be taken to require the Magistrate to sit on a

Sunday.”.



(a) for paragraph (6) there are substituted the following paragraphs –

“(6) An application for a warrant of further detention may be made at

any time before the expiry of 48 hours after the relevant time.

(6A) This paragraph applies in a case where it is a Sunday or a day

where it is not otherwise practicable for the court to sit at the

expiry of 48 hours after the relevant time.

(6B) Where paragraph (6A) applies –

(a) subject to paragraph (8), an application for a warrant of

further detention may be made as soon as practicable after

the expiry of 48 hours after the relevant time but before the

expiry of 72 hours after the relevant time;

(b) an officer of the Force of at least the rank of superintendent

must, before the expiry of 48 hours after the relevant time,

provide the custody officer with written authorization to

make an application under sub-paragraph (a); and

(c) the court must sit during the 24 hours following the expiry of

the 48 hours after the relevant time.”;

(b) in paragraph (7) –

(i) for the words “In a case to which paragraph (6)(b) applies” there

are substituted the words “Where an application for a warrant of

further detention is made under paragraph (6B)”,

(ii) for sub-paragraph (b) there is substituted the following sub-

paragraph –

“(b) the custody officer shall –

(i) make a note in that person’s custody record of the fact

that he or she was kept in police detention for more

than 48 hours after the relevant time, and of the reason

why he or she was so kept, and

(ii) as soon as possible after the expiry of the 48 hours

after the relevant time, notify the Attorney General of

the fact that the person has been kept in police

detention for more than 48 hours after the relevant

time.”;

(c) in paragraphs (8) and (9)(b), for the words “36 hours” there are

substituted the words “48 hours”;

(d) for paragraph (13) there is substituted the following paragraph –


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“(13) The period shall not be longer than 48 hours or end later than

96 hours after the relevant time.”.



(a) in paragraph (1) for the words “Article 36(6)” there are substituted the

words “Article 36(7)”;

(b) in paragraph (2) for the words “not later than the first sitting after he is

charged with the offence” there are substituted the words “within the

period of 48 hours commencing with the time when he or she was

charged with the offence”;

(c) after paragraph (2) there is inserted the following paragraph –

“(2A) In calculating the period of time specified in paragraph (2), there

shall be disregarded Christmas Day, Good Friday and any

Sunday.”;

(d) in paragraph (3) for the words “on the next day” there are substituted the

words “within the period of time specified in paragraph (2)”;

(e) in paragraph (4) for the words “not later than the day next following the

relevant day” there are substituted the words “within the period of time

specified in paragraph (2)”;

(f) paragraphs (5) and (7) are deleted.



“44 Power of arrest for breach of bail

(1) This Article applies to a person granted bail under this Part.

(2) A police officer may arrest the person if the person does not

comply with a requirement, or breaches any condition of bail

imposed in accordance with Article 30 or 31B.

(3) A person arrested under paragraph (2) shall be taken to a

designated police station as soon as practicable after arrest.”.


After Article 48 of the principal Law there is inserted the following Article –

“48A Rules of court for purposes of Part 5

The power to make rules of court under Article 29 of the Magistrate’s

Court (Miscellaneous Provisions) (Jersey) Law 194915 includes the power

to make rules for the purposes of this Part.”.


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In Article 108 of the principal Law, for the words “aged 17” there are

substituted the words “aged 18”.


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SCHEDULE 3

(Article 23)

ENACTMENTS CONSEQUENTIALLY AMENDED

1 Loi (1864) réglant la procédure criminelle amended

In the Loi (1864) réglant la procédure criminelle16 –

(a) for Article 20 there is substituted the following Article –

“20

En tout état de la cause, même lors du renvoi à la Cour Royale, le Juge

pourra admettre le prévenu en liberté provisoire conformément à la Loi

dite Criminal Procedure (Bail) (Jersey) Law 201-17.”;

(b) in Article 24, for the words “s’il y a lieu, être admis à caution, la Cour

fixant le montant du cautionnement” there are substituted the words “être

admis en liberté provisoire conformément à la Loi dite Criminal

Procedure (Bail) (Jersey) Law 201-”.

2 Criminal Justice (Jersey) Law 1957 amended

In the Criminal Justice (Jersey) Law 195718 –

(a) in Article 4 –

(i) in the heading, for the word “recognizances” there is substituted

the word “sureties”,

(ii) in paragraph (1), for the words “, or a recognizance (caution) is

forfeited before, any court” there are substituted the words “any

court, or an amount is forfeited by a surety,”,

(iii) in paragraph (1)(a), for the words “due under the recognizance”

there are substituted the words “forfeited by a surety”,

(iv) for paragraph (1)(d), there is substituted the following sub-

paragraph –

“(d) in the case of a surety, discharging the amount forfeited or

reducing the amount so forfeited.”,

(v) in paragraph (2), for the words “before which the recognizance is”

there are substituted the words “which orders the amount”,

(vi) in paragraph (3), for the words “a sum due under a recognizance”

there are substituted the words “an amount forfeited”,

(vii) for paragraph (4), there is substituted the following paragraph –

“(4) The power conferred by this Article to discharge an amount

forfeited by a surety or reduce such an amount shall be in addition

to any other powers relating to the discharge, cancellation,

mitigation or reduction of any such amount.”;


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(b) in Article 5 –

(i) in the heading, for the word “recognizances” there is substituted

the word “sureties”,

(ii) in paragraphs (1) and (2), in each place where the words “due

under the recognizance” occur there are substituted the words

“forfeited by a surety”;

(c) in Article 6 –

(i) for the heading and paragraphs (1) and (2), there are substituted the

following heading and paragraphs –

“6 Payment of fines, forfeited sureties or securities

(1) Subject to paragraph (2), this paragraph applies where a person is

imprisoned or otherwise detained and –

(a) is in default of the payment of –

(i) a fine ordered by the court,

(ii) the amount forfeited by a surety, or

(b) is ordered to pay a security under Article 12(1)(a) of the Bail

Law.

(1A) Where paragraph (1) applies –

(a) on payment to the Viscount or the governor of the prison of

any fine or amount mentioned in paragraph(1)(a);

(b) where the Viscount has otherwise succeeded in recovering

the full amount of, or an amount equivalent to a defaulted

payment mentioned in paragraph 1(a); or

(c) on depositing with the Viscount the security mentioned in

paragraph (1)(b),

such person shall be released unless the person is in custody for

some other cause.

(2) Except between the hours of 8 a.m. and 9 p.m., nothing in

paragraph (1) shall oblige the governor of the prison –

(a) to accept payment of any fine or amount mentioned in

paragraph (1)(a) and to release any person so detained in

default of such payment; or

(b) to release any person detained pending the deposit of the

security mentioned in paragraph (1)(b).”;

(ii) in paragraph (3) –

(A) for the words “the payment of a fine or the amount due

under a recognizance” there are substituted the words “a

payment mentioned in paragraph (1)(a)”,

(B) for the words “due under the recognizance” there are

substituted the words “forfeited by the surety”,

(iii) in paragraph (5), for the words “paragraph (1)” there are

substituted the words “paragraph (1A)”;


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(d) in Article 7, for paragraph (1) there are substituted the following

paragraphs –

“(1) In this Law –

‘Bail Law’ means the Criminal Procedure (Bail) (Jersey)

Law 201-19;

‘Borstal institution’ has the meaning given in section 43 of the

Prison Act 1952 (c.52) of the United Kingdom before the

amendment of that section by the Criminal Justice Act 1988 (c.33)

of the United Kingdom;

‘surety’ has the meaning given in Article 1(1) of the Bail Law; and

‘youth detention’ has the meaning given in Article 1(1) of the

Criminal Justice (Young Offenders) (Jersey) Law 201420.

(1A) References in this Law to ‘amount forfeited by a surety’ mean the

amount ordered as forfeited by a surety under Article 14(6) of the

Bail Law.”.

3 Extradition (Jersey) Law 2004 amended

In the Extradition (Jersey) Law 200421 –

(a) Article 98(2) to (4) is deleted;

(b) After Article 98 there is inserted the following Article –

“98A Application of the Criminal Procedure (Bail) (Jersey) Law 201-

(1) Articles 12 to 14, and 19 and 20 of the Criminal Procedure (Bail)

(Jersey) Law 201-22 (the ‘Bail Law’) shall, subject to the

modifications set out in paragraph (2), apply for the purposes of

this Part as if a person whose extradition is requested were a

defendant within the meaning of the Bail Law.

(2) In Article 12(7) and (9) of the Bail Law, for the words ‘Article 11’

there are substituted the words ‘Article 98(1) of the Extradition

(Jersey) Law 200423’.”;

(c) in Article 101(2) and 102(3), for the words “as soon as is reasonably

practicable” there are substituted the words “within 48 hours of his or her

arrest”;

(d) after Article 102 there is inserted the following Article –

“102A References to period of 48 hours

In determining for the purposes of Article 101(2) and 102(3) when the

period of 48 hours expires, there shall be disregarded Christmas Day,

Good Friday and any Sunday.”.


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4 Prison (Jersey) Rules 2007 amended

In Rule 50(1) of the Prison (Jersey) Rules 200724, for sub-paragraph (b), there is

substituted the following sub-paragraph –

“(b) providing a security or proposing a surety as a condition of

the prisoner’s bail in accordance with Article 12 of the

Criminal Procedure (Bail) (Jersey) Law 201-25.”.

5 International Criminal Court (Jersey) Law 2014 amended

In Article 14 of the International Criminal Court (Jersey) Law 201426, for

paragraphs (2) to (4), there are substituted the following paragraphs –

“(2) Articles 9, 11(2), 12(1) to (6), (10) and (11), 13 and 14, and

Articles 17 to 20 of the Criminal Procedure (Bail) (Jersey)

Law 201-27 (the ‘Bail Law’) shall, subject to the modifications set

out in sub-paragraphs (a) and (b), apply for the purposes of this

Article as if a person to whom this Part applies were a defendant

within the meaning of the Bail Law –

(a) in Articles 9, 11(2), 12 to 14 and Articles 17 and 18 of the

Bail Law, any reference to ‘court’ shall be construed as a

reference to the ‘Magistrate’;

(b) For Article 12(1) of the Bail Law there is substituted the

following paragraph –

‘(1) Subject to Article 15(c) of the International Criminal Court

(Jersey) Law 201428, before a defendant is granted bail the

Magistrate may, as a condition of bail, require the defendant

to do either or both of the following –

(a) provide a security for that defendant’s surrender to

custody which shall be –

(i) of such an amount as the Magistrate may order,

and

(ii) deposited with the Viscount before the

defendant is released from the custody of the

Magistrate;

(b) propose a person who agrees to stand as surety to

secure the defendant’s surrender to custody.’.

(3) A person granted bail under this Law is under a duty to surrender

to the custody of the Magistrate, and must not absent himself or

herself from the Magistrate’s Court without the Magistrate’s

permission.

(4) If the Magistrate denies the person bail on the first occasion he or

she appears before the Magistrate, the person may, on the next

occasion he or she appears before the Magistrate, support an

application for bail with any argument as to fact or law that the

person wishes to put forward (whether or not he or she has

advanced that argument on the first occasion).


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(5) On any subsequent occasion that the person applies for bail, the

Magistrate need not hear arguments as to fact or law which he or

she has heard previously.

(6) Where the Magistrate –

(a) grants or denies a person bail;

(b) appoints a time or place or a different time or place for a

person to surrender to custody; or

(c) imposes, or varies any of the conditions of bail,

the Magistrate shall make a record of the decision in accordance

with Article 10(1) of the Bail Law and, shall cause the person to be

given a copy of the record of the decision and reasons for denying

bail or imposing or varying conditions of that bail, as soon as

practicable after the record is made.”.

6 Connétables (Miscellaneous Provisions – Consequential Amendments)

(Jersey) Regulations 2014 amended

In the Connétables (Miscellaneous Provisions – Consequential Amendments)

(Jersey) Regulations 201429 –

(a) Regulation 29(i) to (l) is deleted;

(b) in Regulation 38(2), in both places where the words “to (l)” occur there

are substituted the words “and (h)”.

Endnotes Draft Criminal Procedure (Bail) (Jersey) Law 201-

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1 chapter 07.595 2 L.29/2016 3 chapter 24.660 4 chapter 07.280 5 chapter 08.370 6 chapter 08.340 7 chapter 08.180 8 chapter 07.245 9 chapter 17.325 10 chapter 17.520 11 chapter 07.770 12 chapter 23.750 13 chapter 23.750 14 chapter 12.200 15 chapter 07.595 16 chapter 08.740 17 P.52/2017 18 chapter 08.320 19 P.52/2017 20 chapter 08.380 21 chapter 17.325 22 P.52/2017 23 chapter 17.325 24 chapter 23.775.30 25 P.52/2017 26 chapter 17.520 27 P.52/2017 28 chapter 17.520 29 R&O.81/2014

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